Political prosecutions and unfair trials – Strasbourg scrutiny enhanced

by Philip Leach

Introduction

With the ominous prospect of further political prosecutions in some parts of Europe, it is welcome that the European Court of Human Rights (‘the Court’, ‘ECtHR’) has taken a significant step to ensure greater accountability. It has done so by developing its case law under Article 18 of the European Convention on Human Rights, a provision which prevents states from restricting human rights for ulterior purposes. In recent cases against Russia and Georgia, the Court has confirmed that this provision applies not only to pre-trial detention, but also, fundamentally, to the trial itself. This post seeks to explain the context for this change, and to assess its implications.

The context: more fractured and undemocratic polities in Europe

In recent years, politicians, journalists, human rights defenders and judges who have been targeted by state authorities have successfully invoked Article 18 of the Convention, to establish, in essence, that they have been the subject of ‘political prosecutions’. They have included the former Ukrainian Prime Minister Yuliya Tymoshenko and former Interior Minister Yuriy Lutsenko, the Azerbaijani politician Ilgar Mammadov, the former Georgian Prime Minister Ivane Merabishvili (see also here and here), as well as the Turkish politicians Selahattin Demirtaş and Yüksekdağ Şenoğlu, and the late Russian politician Alexey Navalnyy: in his case, not just once, but twice (to date, at least). So too have human rights defenders like Rasul Jafarov (who was pardoned and released on the day of the European Court judgment), Intigam Aliyev, Leyla Yunusova and Arif Yunusov, and Osman Kavala, the investigative journalist Khadija Ismayilova, the Bulgarian judge Miroslava Todorova and the Polish judge Paweł Juszczyszyn (see here). The cases are remarkable in that the ECtHR has expressly found that these critical voices have been deliberately targeted by European states, in an attempt to silence and/or punish them. The decisions have therefore been significant in identifying and condemning what was at the heart of these cases: state authorities acting cynically, in bad faith. These weren’t ‘ordinary’ or ‘simple’ Convention violations, but instead represented the state orchestration of corrupt practices, and therefore a challenge to fundamental democratic principles. For example, in Selahattin Demirtaş v. Turkey (no. 2), Article 18 was found to have been breached where criminal proceedings instigated against a leading opposition politician during a referendum and a presidential election campaign, were found to have ‘pursued the ulterior purpose of stifling pluralism and limiting freedom of political debate, which is at the very core of the concept of a democratic society’ (para. 437).

Bad faith and the right to a fair trial

However, what has also been striking about these cases is that they have only related to the iniquity of the pre-trial detention process, and not to the fairness (or otherwise) of the trial itself. In Strasbourg terms, this means that the Court has found violations of Article 18 taken together with Article 5 (the right to liberty and security of the person) – but not with Article 6. In fact, a Chamber of the Court had gone as far as saying that Article 18 has no application to Article 6, because the right to a fair hearing has no ‘express or implied restrictions’ to which Article 18 can attach (which has previously been critiqued both by dissenting judges Nussberger, Tsotsoria, O’Leary and Mits here and by commentators here). The illogical upshot of that decision was that although Strasbourg could detect and call out the state’s bad faith in prosecuting someone for no good reason, it did not have the power to make an equivalent decision as regards their subsequent trial. As Gavron and Remezaite have argued, the Court’s stance undermined ‘its ability to address and condemn an effective tool of repression favoured by a number of increasingly authoritarian and illiberal Member States’.

It is therefore very welcome that this glaring lacuna has now been filled by the Grand Chamber in the inter-state case of Ukraine v. Russia (Re Crimea), decided in June 2024. A long-awaited decision, the judgment originated in two applications lodged in 2014 and 2018 concerning Russia’s occupation of Crimea. Amidst multiple Convention violations identified, the Court overturned its previous position in respect of states’ bad faith as it applies to the right to a fair trial. Taking stock of the Travaux Préparatoires to the Convention, the Grand Chamber noted that Article 18 ‘was designed with a broad scope aimed at preserving democracy and protecting the rights and freedoms enshrined in it from the dangers posed by totalitarianism’. It should not therefore be subject to a narrow application. Furthermore, in any event, the right to a fair hearing was found to be subject to both explicit and implicit restrictions, including in respect of the right of access to court and the right to legal assistance. These conclusions led to the Court’s affirmation that ‘trials before a court must never be used for “ulterior purposes” and thereby undermined’ (para. 1338), as well as important findings that Ukrainian political prisoners had been both prosecuted and convicted by the Russian authorities for the ulterior purpose of punishing and silencing any political opposition (breaching Article 18 in conjunction with Articles 5, 6, 8, 10 and 11).

More recently, the Grand Chamber’s stance as to the applicability of Article 18 to Article 6 was reiterated by the Fifth Section of the Court in a case brought by former Georgian Defence Minister, David Kezerashvili. Like Ivane Merabishvili, he had been a senior figure in the United National Movement party, in opposition to the incumbent Georgian Dream party, and was subjected to multiple criminal proceedings. On the facts of that case, the Court found a breach of the right to a fair hearing (because of the lack of objective impartiality of the Supreme Court), but there was insufficient evidence to substantiate the applicant’s allegation of an ulterior motive behind his prosecution and conviction, and so there was no violation of Article 18.

A more meaningful form of redress?

There can be little doubt that these cases are significant for laying bare the true (and stark) motives of state entities and even individual state officials at their helm. But are there other more specific consequences of such findings? A frequent feature of these decisions is the Court’s application of Article 46 of the Convention, in laying down more specific or particular measures which must be undertaken by the state in order to comply with the judgment. For example, such strictures have notably included orders to the Turkish authorities for the immediate release of the businessman and human rights defender, Osman Kavala, and the leaders of the People’s Democratic Party, Selahattin Demirtaş and Yüksekdağ Şenoğlu. It is an unmistakeable indication of the absence of any real political plurality in Türkiye that all three remain imprisoned, in spite of Strasbourg judgments in their cases dating back to 2019, 2020 and 2022, respectively.

Moreover, the Court’s stipulations have been complemented to a certain extent by the exertion of closer scrutiny by the Committee of Ministers (in fulfilment of its role of supervising the enforcement of judgments under Article 46 (2) of the Convention). For example, findings of Article 18 violations have resulted in the only two instances of infringement proceedings being brought against Council of Europe states – in the cases of Ilgar Mammadov (who was released) and Osman Kavala (who remains incarcerated to date).

The Court has also imposed broader, ‘general measures’ in the Article 18 judgments, as it did for example in Alexey Navalnyy’s 2018 judgment, requiring legislative changes in Russia to better protect the right to peaceful assembly. In Juszczyszyn v. Poland, the Court acknowledged that the context was one of a ‘substantially weakened’ judiciary, as a result of reforms and measures imposed by the executive and legislature, although it did not stipulate broader steps to be taken by the Polish authorities.

But what of the criminal convictions which are the result of these warped criminal prosecutions? If the right to a fair trial is breached, it is well-established now that the Court has the power to order an applicant’s retrial (if so desired), even if such stipulations are only relatively rarely made in practice. Could, and should, the Court go further in a case where the state’s ulterior, bad faith purposes have been established in the form of a finding of a breach of Article 18 together with Article 6? In such a situation, there can surely be no realistic prospect of a future fair trial. That the proceedings are irretrievably tainted was recognised by the Grand Chamber of the Court in its 2022 infringement proceedings judgment in the case of Kavala v. Türkiye. There, the Court held that the findings in its 2019 Kavala judgment (including a breach of Article 18 taken together with Article 5) ‘vitiated any action resulting from the charges related to the Gezi Park events and the attempted coup’ (para. 172).

In rare cases, an applicant’s conviction has been quashed, as happened to Yuliya Tymoshenko, and this was also the eventual outcome for Azerbaijani human rights activist, Rasul Jafarov (see here). The Committee of Ministers is also prepared to lend its weight, for example, calling for the quashing and deletion of Ilgar Mammadov’s conviction, as well as the elimination of all the other consequences of the criminal charges brought against him. However, the exhortations of the Committee of Ministers frequently fall on deaf ears, not just for months, but for years in some situations. Therefore, in cases where the Court finds a violation of Article 18 taken together with Articles 5 and/or 6, it should go further and expressly require the authorities to ensure the quashing of the applicant’s conviction (in the operative paragraphs of the judgment), and also stipulate that there must be no further repetitive criminal proceedings. This would help avoid any ambiguity or lack of specificity of Court judgments, which could hinder their implementation (as argued here).

Conclusion

The European Court’s belated recognition of the applicability of Article 18 to the right to a fair trial is to be heartily welcomed. In a continent which has in recent years witnessed the shenanigans of the Law and Justice Party in Poland, and the machinations of Prime Minister Orbán and the Fidesz party in Hungary, which have been so damaging to the rule of law, and where other Machiavellian populists have secured power, or are waiting in the wings, our dissenting politicians, investigative journalists and human rights defenders need to be better protected from political prosecution. It would be an important contribution for the European Court to order the quashing of convictions in proceedings which are so patently blighted and unfair.